"Opposition to the extension of rights of audience by the bar is driven solely by crude vested interests. By opening up advocacy in the higher courts, the quality of service offered to litigants will improve and the costs will come down. " Critically Discuss. Within UK today there are two main legal professions, Solicitors and Barristers. Both of these legal professions have separate training programmes and are governed separately with different rules.
Firstly Barristers are normally defined under the stereotypical view which is that they spend most of their time in court, usually due to qualified barristers are trained to have rights of audience in all courts. For a barrister to adopt the role of becoming an advocate in court this is known as "rights of audience" and if this can be enforced correctly then that person has the entitlement to represent his or her client in all courts.
With the Courts and Legal Services Act 1990 (CLSA 1990) and the Access to Justice Act 1999 (AJA 1999), the market has now been opened to solicitors who can now apply for higher "rights of audience". It is necessary to consider the roles for both solicitors and barristers. Firstly Barristers are also stated as "Counsels" and the opinion may be shared that they are "specialist advocates". Barristers are entitled to higher rights of audience in all courts in the United Kingdom and are self employed.
Once a barrister has completed the Bar Vocational Course, they become a member of one of the four inns of court. Once this is established the potential barrister has to complete a pupil age to become fully qualified. If this is successful, the individual can be seen as a qualified barrister and is then self employed in where they hire chambers and becomes subjective to the "cab rank rule", where barristers can't choose and pick their clients and are bound by their code of conduct due to "A self-employed barrister…
must in any field in which he professes to practice in relation to work appropriate to his experience.. (Rule 602, Code Of Conduct)"1. In addition the training of a solicitor is different to a barrister, as it is necessary that a Legal Practice Course (LPC) is taken and the work within the LPC becomes beneficial once the individual has completed his/her training contract. A solicitor's role is to give out special legal advice and help their clients within their given situation.
Solicitors work is normally based upon lower advocacy court work and litigation but one must point out that a higher rights of audience may be applied for under the AJA 1999, where a Legal Services Consultative Panel (LSCP) can be applied; this is stated in S18 A (3) in AJA 1999 "The Consultative Panel shall have- (a) the duty of assisting in the maintenance and development of standards in the education, training and conduct of persons offering legal services by considering relevant issues in accordance with a programme of work approved by the Lord Chancellor and, where the Consultative Panel considers it appropriate to do so,
making recommendations to him"2 this clearly shows that it is available to Solicitors to have a wider rights of audience and solicitors have the option to have higher rights of audience if applied correctly. When discussing the issue of fusion amongst the two legal professions, it is vital that the concept must be considered. Fusion is the bringing of both professions into one, enabling the two tier system between solicitors and barristers to be eradicated. This concept of fusion would enforce a join of two professions into one to enable only one common training programme to equally qualify solicitors and barristers.
The term "Lawyer" can be seen as a term in which is frequently used to define what a two tier system is currently. By fusing the two separate areas on the legal system a more concise definition of the term lawyer will be ordained, due to clients enjoying a greater confinement with their lawyer, a privilege that cannot currently be enjoyed, as one cannot gain direct access to a barrister. In addition the concept of fusion would mean that solicitors wouldn't have to apply for higher rights of audience. This was defined in CLSA 1990 28 (2) where it states;
"(2) A person shall have a right to conduct litigation in relation to any proceedings only in the following cases- (a) where- (i) he has a right to conduct litigation in relation to those proceedings granted by the appropriate authorised body"3 The advantage of fusion would allow the public to access solicitors more easily, and would benefit the public dramatically, as it would enable clients to take their cases to higher courts within UK and fusion would enable the power to the law society, which is enjoyed by Barristers, for solicitors to have rights of audience in all courts.
In addition, fusion itself would give clients easier access to solicitors, due to as it currently stands that a client can't access a Barrister directly but if both legal professions were fused it wouldn't be necessary for the client to access a Barrister, as the Solicitor would be able to take the case to a high court if the need arises. In addition, it must also be taken into consideration the concept of the cost, in which must be paid by the client in order for his/her case to reach the higher courts.
By fusing both legal professions it would allow a client to just appoint a "lawyer" instead of appointing both a solicitor and barrister if their case was to go further, which would allow the costs to be reduced. This can be identified in "The English Legal System" text where it states that "there is a suggestion that costs would be reduced as only one lawyer would be required rather than two"4. It must also be noted that there are disadvantages in which can be illustrated on the topic of fusion.
A primary disadvantage can be that there would be a huge loss of specialist expertise. This specific point can be argued due to if a fused profession was created instead of hiring a Barrister, there may be the lack of legal specialist knowledge in that particular area of law, due to Barristers tend to only specialize in certain areas of the Law and aren't usually specialised in all areas, in addition to this, fusion could also lead to a limitation of the standard of advocacy, this was argued in "1997- Royal Commission on Legal Services" .
Furthermore it can be argued that there is the loss of professional detachment, for example a loss of a secondary opinion of a Barrister. This demonstrated in the sense of lacking expert knowledge of a Barrister, in comparison to the knowledge of a solicitor, or a fused profession, as "it is often said that a barrister tends to be more remote than a solicitor when it comes to dealing with the lay client"6 and therefore a loss of knowledge may be lost if both professions fused.
Furthermore with fusing both professions together; there would be a loss of the "cab rank rule" due to there would be a loss of independence among both the Bar and the Law Society. At an overall conclusion both arguments for and against fusion can be seen with AJA 1999 and CLSA 1990, due to both of these Acts enforced that it is possible that Solicitors and Barristers can take a case from the starting point to the finish.
However it must be said that within UK there is always going to be a divide among solicitors and barristers due to certain reasons, and there will always remain a two tier system of both the Law Society and the Bar. I personally feel fusing both professions would be successful due to the need of solicitors gaining higher rights of audience and Barristers with the specialist/expert knowledge would be dismantled into one profession. This can therefore give the lawyer an opportunity to decide what area he/she wants to focus on, and benefit the public and lawyers significantly.